Scott Witzke v. Shawn Brewer , 2017 FED App. 0043P ( 2017 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SCOTT ANDREW WITZKE, ┐
Petitioner-Appellant, │
│
> No. 15-2437
v. │
│
│
SHAWN BREWER, Warden, │
Respondent-Appellee. │
┘
Appeal from the United States District Court for
the Eastern District of Michigan at Detroit.
No. 2:15-cv-12429—Denise Page Hood, Chief District Judge.
Argued: February 2, 2017
Decided and Filed: February 22, 2017
Before: GIBBONS, COOK, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: Sam Scaritt-Selman, UNIVERSITY OF MICHIGAN LAW SCHOOL FEDERAL
APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for Appellant. Raina I. Korbakis,
OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for Appellee. ON
BRIEF: Sam Scaritt-Selman, Melissa M. Salinas, UNIVERSITY OF MICHIGAN LAW
SCHOOL FEDERAL APPELLATE LITIGATION CLINIC, Ann Arbor, Michigan, for
Appellant. Raina I. Korbakis, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee.
No. 15-2437 Witzke v. Brewer Page 2
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OPINION
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COOK, Circuit Judge. Petitioner Scott Witzke seeks habeas relief under 28 U.S.C.
§ 2254, asserting that a Michigan order revoking his parole violated his due process rights. The
district court dismissed his petition for failure to exhaust state remedies, and a panel of this court
later issued a certificate of appealability on that issue. After Witzke appealed, however, the
Michigan Parole Board released him on parole. Because there is no longer any remediable
injury, we DISMISS the appeal as MOOT.
I.
Witzke is currently serving four sentences in the Michigan Department of Corrections
(MDOC) for “uttering and publishing,” that is, using forged financial instruments. See Mich.
Comp. Laws § 750.249. In May 2013, the Parole Board released Witzke on parole for a 15-
month term. But a year later, authorities arrested him for eight alleged parole violations,
including a new criminal conviction for using a fake check at a guitar store. Following his arrest,
Witzke appeared before an MDOC agent, who found probable cause for all eight counts. Witzke
pled guilty to two of them. At a second hearing in August 2014, another MDOC officer
dismissed all remaining counts except the fraudulent check violation. Finding Witzke guilty of
that violation, the officer recommended that the Parole Board revoke Witzke’s parole. In
September, the Parole Board adopted the recommendation.
Without seeking relief in Michigan courts, Witzke filed a pro se habeas petition under
28 U.S.C. § 2254 in the Eastern District of Michigan, challenging the September 2014 parole
revocation as a violation of his due process rights and requesting a new hearing before the Parole
Board. He claimed entitlement to “relief . . . [due to] the failure of the Michigan Parole Board to
provide [him] with an in-person hearing before the decision maker on the question of whether
parole should be revoked.” The district court summarily dismissed his petition without prejudice
for failure to exhaust state remedies.
No. 15-2437 Witzke v. Brewer Page 3
Following the district court’s decision, Witzke filed a motion for a certificate of
appealability in this court. In May 2016, the court granted his motion, concluding that
reasonable jurists could disagree on whether Witzke must exhaust state remedies, citing the
limited availability of habeas relief in Michigan. Witzke v. Brewer, No. 15-2437 (6th Cir. May
10, 2016) (order). Around this time, however, the Parole Board re-released Witzke on parole.
He will finish serving his sentence for his underlying criminal conviction in May 2017.
II.
The State argues that Witzke’s re-release on parole deprives this court of jurisdiction over
his appeal challenging the 2014 parole revocation. We agree.
Federal courts may review only actual cases or controversies, U.S. Const. art. III, § 2,
cl.1, and thus “have no power to adjudicate disputes which are moot,” McPherson v. Mich. High
Sch. Athletic Ass’n, Inc., 119 F.3d 453, 458 (6th Cir. 1997) (en banc) (quoting Crane v. Ind. High
Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir. 1992)). “[A]n actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for
Official English v. Arizona, 520 U.S. 43, 67 (1997) (quoting Preiser v. Newkirk, 422 U.S. 395,
401 (1975)). Accordingly, if a case becomes moot during an appeal, the reviewing court must
dismiss it. Rosales-Garcia v. Holland, 322 F.3d 386, 394 (6th Cir. 2003) (en banc).
In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court addressed mootness in the
context of a habeas petition challenging a parole-revocation proceeding. Id. at 3. In that case,
petitioner Spencer asserted a due process challenge to a Missouri order revoking his parole. Id.
at 5. But before the district court ruled on the petition, Spencer “was re-released on parole, and,
two months after that . . . the term of his imprisonment expired.” Id. at 6. The Court concluded
that these developments mooted his habeas petition. Id. at 18. As it explained, “[o]nce the
convict’s sentence has expired . . . some concrete and continuing injury other than the now-ended
incarceration or parole—some ‘collateral consequence’ of the conviction—must exist if the suit
is to be maintained.” Id. at 7 (citing Carafas v. LaVallee, 391 U.S. 234, 237–38 (1968)).
Although a court may presume such collateral consequences when a released petitioner contests
his underlying criminal conviction, this presumption does not extend to parole-revocation
No. 15-2437 Witzke v. Brewer Page 4
challenges. Id. at 12–14. Accordingly, a petitioner who disputes a parole revocation, but has
already completed his term of reincarceration, must demonstrate collateral consequences
stemming from the revocation or else face dismissal of his claims. Id. at 14. Since Spencer
failed to make this showing, the Court dismissed his case as moot. Id. at 14–18.
Witzke’s habeas petition, like Spencer’s, challenges his parole revocation on due process
grounds and requests a new hearing before the Parole Board. But Witzke has already served the
period of reincarceration imposed upon the revocation. This reincarceration “cannot be undone.”
Spencer, 523 U.S. at 8. And since he contests only his parole revocation (and not his underlying
criminal conviction or current parole status), we cannot presume Witzke suffers other collateral
consequences from the 2014 Parole Board decision. See id. at 12. In light of these facts, it
appears that no continuing injury remains for this court to redress.
Witzke nevertheless makes two arguments in an attempt to salvage his petition. Both fail
to persuade us.
First, Witzke argues that Spencer’s collateral-consequences rule does not apply to him.
He claims Spencer is distinguishable because the petitioner in that case served the entire term of
his sentence and was no longer in custody; Witzke, on the other hand, will be a parolee until May
2017. Witzke reasons that, since parolees are still “in custody” as required to bring a § 2254
petition, see United States v. Williams, 15 F.3d 1356, 1359 (6th Cir. 1994), his challenge to the
2014 parole revocation remains a live controversy.
But satisfying § 2254’s “in custody” requirement does not necessarily establish a case or
controversy when a petitioner seeks habeas relief. See Spencer, 523 U.S. at 7; Rosales-Garcia,
322 F.3d at 395 n.6. For Witzke, all that the “in custody” provision mandates is his incarceration
by reason of the parole revocation at the time of filing his petition. See Spencer, 523 U.S. at 7
(citations omitted). Article III’s case or controversy clause demands something more: the
continued existence of a remediable injury at all stages of review. See id.; Arizonans, 520 U.S.
at 67. Here, no one disputes that Witzke satisfies § 2254’s “in custody” condition. The relevant
issue, rather, is whether Witzke suffers any harm from the allegedly unconstitutional parole-
revocation hearing now that the Parole Board has already re-released him on parole. Since “[t]he
No. 15-2437 Witzke v. Brewer Page 5
reincarceration that he incurred as a result of that [revocation] is now over,” Spencer, 523 U.S.
at 8 (emphasis added), Spencer’s collateral consequences rule still applies, his current custody
status notwithstanding, id. at 14.
Second, Witzke contends that, even if Spencer does apply, he can show a collateral
consequence to defeat mootness. As he posits, “[i]t is highly probable that the revocation of [his]
parole could be used against him in a future parole proceeding.”
The Supreme Court, however, rejected a similar argument in Spencer. There, the
petitioner asserted “that the [challenged] revocation could be used to his detriment in a future
parole proceeding,” but the Court concluded this harm was too speculative—“a possibility rather
than a certainty or even a probability”—to keep his controversy alive. 523 U.S. at 14. Witzke
attempts to distinguish Spencer, claiming that the potential for his revocation to be used against
him in a future parole proceeding is more concrete than it was in Spencer. Specifically, he
argues that the discretion of the Michigan Parole Board is “more constrained” than that of the
Missouri counterpart at issue in that case. He points to guidelines requiring the Michigan Parole
Board to take into consideration prior criminal conduct, including parole failures, when deciding
whether to release a prisoner. See Mich. Admin. Code R. 791.7716(3)(b). He reasons that the
Michigan Parole Board’s limited discretion makes the potential future harm from his revocation
more probable than Spencer’s asserted injury-in-fact.
Despite his attempts to distinguish Michigan’s and Missouri’s parole procedures,
Witzke’s purported collateral consequence is still too speculative to satisfy Article III’s case or
controversy requirement. Although Witzke suggests that the Michigan Parole Board’s decision-
making process is “constrained,” the state’s parole guidelines direct the Board to evaluate many
factors in addition to a past revocation when determining whether to modify a prisoner’s status.
See Mich. Admin. Code R. 791.7716. His 2014 parole revocation would thus constitute “simply
one factor, among many” that would be “considered by the [Parole Board] in determining
whether there is a substantial risk that [he] will not conform to reasonable conditions of parole.”
Spencer, 523 U.S. at 14 (quoting Lane v. Williams, 455 U.S. 624, 632 n.13 (1982)). Moreover,
Michigan’s guidelines afford the Board discretion to release a prisoner on parole who may not
otherwise qualify. See Mich. Admin. Code R. 791.7716(5). The conjectural nature of Witzke’s
No. 15-2437 Witzke v. Brewer Page 6
alleged future harm means that “there is nothing for [this court] to remedy.” Spencer, 523 U.S.
at 18.
III.
We DISMISS this appeal as MOOT.